Terms and Conditions

NIGEL BROOKS CHARTERED PATENT AGENT

Terms of Business

Us and Our Work

This document sets out the obligations that we Nigel Brooks Chartered Patent Agent, have to you the client and that you have to us (“the Terms of Business”). The Terms of Business are our contract with you and by continuing to instruct us you confirm your acceptance of them.

Nigel Brooks Chartered Patent Agent is the trading name of the intellectual property professional practice operated by Nigel Brooks (“the Practice”). The Practice undertakes the full scope of patent, trade mark, copyright and designs work, acting as agent or attorney in obtaining registrations for clients, in the UK, Europe and further afield. The Practice also advises on the validity and infringement of patents and trade marks, searching through databases as necessary. The work extends to enforcement of these rights and advising on licences and assignments.

Nigel Brooks is a member of the Chartered Institute of Patent Attorneys and the European Patent Institute. He is on the list of attorneys entitled to practice before the British Patent Office, the British Trade Mark Registry, the European Patent Office and the European Trade Mark Office. As a result he and the Practice are entitled to act before the UK Patents County Court and the World Intellectual Property Office in respect of International Patent and Trade Mark Applications.

Nigel Brooks MA CPA EPA AMIMechE before the UK Intellectual Property Office (the Patent Office and the Trade Marks Registry) is regulated by the Intellectual Property Regulatory Board (IPReg). Details of IPReg can be found at: www.ipreg.org.uk.

As Patent Attorneys we are bound by IPReg’s Code of Conduct and more particularly we owe our clients a duty to act with due skill, care and diligence and with proper regard for the technical standards expected of us. We also owe you professional obligations of confidentiality and to avoid conflicts of interest. We will not always be able to identify conflicts and therefore you must notify us of matters in your knowledge which might constitute or give rise to a conflict situation. We have a duty to act in your best interests on the matters on which you instruct us and we will not act against you for another client.

You, Our Client

Unless otherwise agreed in advance, the addressee of the letter accompanying these Terms of Business will be regarded as our client and as such will be responsible for paying our fees. Where our client is a company or other incorporated body, unless we are instructed to accept instructions from specified persons only, we may accept instructions from any person who appears to have the authority to give us instructions on behalf of that body.

Communications

We accept instructions by telephone, fax, email and ordinary mail. Where instructions are not confirmed in writing, whilst we will attempt, as far as is possible, to clarify those instructions, we accept no liability for any resulting misunderstanding. We accept no liability for any loss incurred by the client in the event of a lack of confirmed written instructions.

It is the client’s responsibility to ensure that we actually receive any instructions sent to us by post, fax or email.

Emails are not 100% reliable. We are happy to accept instructions by email, but recommend that they are confirmed by hard copy – fax or mail. We cannot accept responsibility resulting from instructions by email only which we have not acknowledged.

In the course of our work for you, we may communicate with you and your personnel using email and we will do so on the basis that you accept the risks (including, but not limited to, the security risk of interception of, or unauthorised access to, such communications, delays or non-receipt and the risk of viruses) except in the case of our fraud or reckless disregard of our professional obligations. We will carry out commercially reasonable procedures to check for the then most commonly known viruses and you agree to do the same.

In general, communications between a UK patent attorney or trademark attorney and his client are privileged. That means that others, including the courts, are not entitled to discover the content of such communications where they concern professional advice. Privileged status can be lost if the document in question is circulated to a person other than the addressee of the document.

Patent Offices often impose time limits and failure to meet those time limits may result in the limitation or loss of the rights concerned. We will inform you of applicable time limits and in addition to the initial notice will provide at least one reminder. We accept no liability if instructions sufficient to be acted upon are not received in a reasonable time so as to allow action to be taken within the relevant time limits. In the event of late instructions or late payments to us we reserve the right to charge an increased fee in relation to that aspect of an instruction.

We shall not reveal confidential information about you, your intellectual property or your affairs to other people without your consent, unless we are legally required to do so. We will not use your confidential information for the advantage of any third party and will not use your confidential information to the advantage of another client.

We may however disclose that we act or have acted for you and disclose that we act or have acted for you on a matter if that information is in the public domain or if you specifically consent to that disclosure. Please bear in mind that all your published patent applications filed by us for you will show our name as address for service.

Searches and Renewals

Any searches you request may be carried out by us, by patent offices or by an independent specialist search firm. Due to the limitations and occasional errors in classifications, indices, computer databases and official records, no search can be guaranteed for accuracy or to be comprehensive. We will endeavour to point out any particular limitations when reporting search results and may recommend extending the search. Also please bear in mind that patent applications remain unpublished for 18 months and cannot be searched for until published.

Whilst we will generally assume that your overriding instruction is not to let your rights lapse, unless you specifically instruct us to the contrary, if a renewal fee is payable and or we specifically request instructions and receive no adequate response after our initial letter and one further reminder have been sent to you, we will take no further action to renew the relevant right. As noted at clause 3.6 any instructions must be received in good time in advance of a deadline in order that we may act on those instructions. Whilst we will make every effort to meet any relevant deadline we accept no liability for any loss to you resulting from failure to meet a deadline where you have failed to provide your instructions in good time. We reserve the right to charge an increased fee where your instructions are received late.

Our Charges

All work that we do for you is chargeable and you are responsible for paying our charges and disbursements. Our work for you is charged by a combination of time and standard charges for particular actions. Where our charges are on a time basis we will charge you for the time incurred on your job at the hourly rate of the relevant professional acting on your behalf. The relevant hourly rate and applicable standard charges will be provided to you on request. Generally the nature of our work is such that the time taken for certain tasks cannot always be accurately predicted. We have published illustrations of typical costs for certain tasks and refer you to our website at www.nbpat.co.uk. At your request we shall provide a non binding estimate before commencing work. We cannot always provide estimates where the costs to be incurred are outside our control.

In our work for you, it is likely to be necessary for us to engage third party associates such as search agents, overseas Patent Agents, solicitors etc or to incur fees with the relevant patent or trademark office on the filing and prosecution of your application. These charges are known as disbursements. We will endeavour to estimate disbursements in advance, particularly on request. However, many disbursements are variable for exactly the same reason as our own hourly rate based fees are. This is particularly so in the case of overseas patent attorneys. Their charges are partly time based and partly disbursement based. We have to pass their charges on to you. (It is not practical for us to keep records of all patent fees in all jurisdictions worldwide – although we endeavour to do so for renewals.) Should you decide not to proceed with any case, it is in your interest promptly to give us clear written instructions that the case is to be abandoned, so that we can where possible prevent further costs for you being incurred contrary to your expectation.

We will usually require payment on account in relation to the disbursements referred to in clause 5.2. In some circumstances we may also require payment on account of our fees before undertaking work, particularly where large fees and expenses are to be incurred or where a client is relatively new to us.

Where fees are incurred overseas in any currency other than pounds sterling then we will charge a handling fee (“Overseas Disbursement Handling Fee”). Full details of our Overseas Disbursement Handling Fee in relation to any payment will be provided on request.

We will also charge for any incidental charges incurred in the course of your instruction such as any travel and subsistence expenses.

On completion of individual steps of the application or renewal process in relation to each patent, trade mark, copyright, design right or other interest in relation to which you instruct us. Separate invoices will be raised in relation to each right on which we are instructed to act on your behalf; and

Where work is unusually time consuming, such as litigation, we will raise invoices at regular intervals.

Our invoices, which we also refer to as debit notes and bills, are payable on receipt. Any queries you have on an invoice must be received as soon as reasonably possible. In the event that no such query is received within 30 days of an invoice’s date, you are deemed to accept that invoice.

Where we are holding money on account of costs and fees in accordance with clause 5.3 we will credit this against debit notes raised for the work in question, either as a book keeping operation or as a credit within debit notes where a payment on account invoice has been raised. (VAT is seldom applicable to payment on account invoices, since these are normally in respect of zero rated or exempt fees disbursements).

In the event that you fail to pay an invoice in full or a payment required on account within 30 days we reserve the right to:-

Suspend work until payment has been made, decline to undertake any further work for you pending such payment and terminate this agreement. We will endeavour to avoid your applications and registrations lapsing for this reason, but we accept no liability for this after having notified you of such suspension.

Charge interest at 4% over the HSBC plc base rate on any amount outstanding or at the then current rate of interest under the Late Payment of Commercial Debts (Interest) Act 1998 whichever is the greater.

Recover on an indemnity basis all costs and fees (including legal fees) incurred in pursuing the amount outstanding and due to us.

Money Laundering Compliance

In order to comply with the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007 we will check the identity of new clients by requesting identifying documentation from individuals and conducting Companies House check for corporate bodies. We will also check the identity of any beneficial owners of corporate bodies and partnerships. If there are reasonable grounds to suspect money laundering the National Crime Agency will be informed.

In accordance with Rule 11 of IPReg’s Code of Conduct, any money received from a client, other than by way of payment of fees or disbursements paid up front, will be held on trust in a bank account which has been set up for this purpose and which is entirely separate from the firm’s professional business accounts.

Our files and Storage

For each job we work on for you we create a file, which may be electronic or hard copy. If you require copies of any papers from our files we shall assist in supplying them (at your expense) subject to all our invoices being settled. Until our invoices are settled in full we shall be entitled to a lien over all your documents including certificates of grant that are in our possession.

If work is transferred to us from another firm (or vice versa) we reserve the right to make a charge for the work involved in the transfer. We will not take over cases where fees are due to a previous attorney unless you give good reason for dissatisfaction such as failure of professional duty and/or self –evident negligence.

We store files for at least six years from when the file is closed. Unless you tell us otherwise, we may destroy your files at the end of that period.

We will retain sufficient information to deal with the renewal of any intellectual property registration which we have been instructed to administer on your behalf. Such information will be retained for the life or earlier lapse of any patent, registered trade mark or registered design or such application and two years thereafter, following which we would normally destroy our paper file. Electronic bibliographic records will be kept longer in line with indefinite availability on patent databases.

Indemnity for threat of infringement proceedings

Before we send any warning on behalf of a client to a third party, we may ask the client to indemnify us against the risks of our being sued for making an unjustified threat of infringement proceedings. The aim of this request is to maintain our objectivity in contentious matters which would diminish if we were to become a party to any proceedings. We may refuse to act for clients who do not provide the requested indemnity.

Security for Our Fees

In some circumstances, particularly where you instruct us to file patent applications overseas and where we are likely to incur significant costs and fees on your behalf, and or where you have previously failed to make payment of fees in accordance with these Terms of Business we may ask you to provide additional security for the payment of fees and costs. In such circumstances we may ask you to provide security by assigning the applications and any resulting patents to us on terms that we shall be obliged to reassign the relevant interests to you on your payment of our fees and costs. If we ask you to do this you will need to take independent legal advice in relation to that arrangement and we will discuss this with you in detail if the need arises. In the event that you do not agree to provide the security requested or an acceptable equivalent then we shall be entitled to terminate our contract with you.

Raising Queries/Concerns

Having a good relationship with our clients is important to us. We are confident that we will provide you with a high quality of service in all respects. However, we appreciate that from time to time difficulties and or misunderstandings can arise. If you have concerns about our work we ask that you first discuss those concerns with the member of our professional staff who manages your work. If this does not resolve the issue to your satisfaction we have a formal complaints procedure, copy of which is available on request.

If you are still concerned following the conclusion of our complaints procedure the matter can be taken forward with the appropriate regulatory body.

For issues relating to the quality of service received, the regulatory body is the Legal Ombudsman. Complaints to the Legal Ombudsman must be made within six months of receiving a final response from us on the matter. The Legal Ombudsman can be contacted as follows:

More information about the role of IPReg and its complaints procedure can be found on the IPReg website at www.ipreg.org.uk

Termination

You may terminate your instructions by notice in writing to us at any time on giving reasonable notice.

We may terminate our engagement in accordance with clause 5.10 above, or if we have good reason to do so including where you are otherwise in breach of these Terms of Business. We also reserve the right to terminate and resign should you take any step in an application which we would normally take for a client, because we cannot accept responsibility for an application not in our control.

In event of termination we will resign as address for service at the Patent Office and/or other such office.

Any termination is of course subject to our obligation not to prejudice your interest in cases of conflict or otherwise. If you or we decide that we will stop acting for you, you agree that you will pay our charges and expenses up to the time of our ceasing to act, such payment to be made on receipt of our invoice in accordance with these Terms of Business.

Exclusion and Limitation of Liability

If anything should unfortunately go wrong, our liability for any loss suffered by you as a result of our breach of our obligations to you in accordance with these Terms of Business will be limited to the lesser of:-

your direct loss; or

£5,000,000.

In no circumstances shall we be liable to you for:

any indirect or consequential loss or damage (including but not limited to any loss of profits, goodwill or anticipated savings or other benefits);

any loss as a result of advice or breach of contract from or by third party advisers or other third parties who may be instructed in relation to our work for you;

any loss resulting from any delay as a result of your failure to make a payment on account of any disbursements due or where we suspend our services in accordance with clause 5.10 above;

any loss resulting from your failure to provide us with adequate instructions including where such failure results in a failure to meet any deadline for registration or renewal of any intellectual property right provided that we have complied with our obligations as set out in these Terms of Business.

Nothing in these Terms of Business shall limit our liability for fraud nor for any liability that cannot lawfully be excluded.

General

If any provision or part-provision of our contract with you on these Terms of Business is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the contract.

We shall not be liable to you if we are unable to perform our services as a result of any cause beyond our reasonable control. In the event of such occurrence we shall notify you as soon as reasonably practicable.

These Terms of Business apply to all services provided by us to you after the date of the letter accompanying these Terms of Business unless we agree otherwise with you.

Our contract with you on these Terms of Business shall not be enforceable by a person who is not a party to the contract.

Our contract with you on these Terms of Business, and any dispute or claim arising out of or in connection with the contract or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this contract or its subject matter or formation.

Nigel Brooks Chartered Patent Agent is a trading name of Hill Hampton Limited, registered in England and Wales, Company No 06707229 of Hill Hampton, East Meon, Petersfield, Hampshire GU32 1QN, United Kingdom. The company accepts liability for advice given in this name and the Nigel Brooks CPA name. NS Brooks MA CPA EPA AMIMechE is regulated by IPREG - www.ipreg.org.uk.